Adultery could mean life, court finds.

Adultery could mean life, court finds
That's what the law says in sex-drug case Cox appealed

January 15, 2007

BY BRIAN DICKERSON

FREE PRESS COLUMNIST

In a ruling sure to make philandering spouses squirm, Michigan's second-highest court says that anyone involved in an extramarital fling can be prosecuted for first-degree criminal sexual conduct, a felony punishable by up to life in prison.

"We cannot help but question whether the Legislature actually intended the result we reach here today," Judge William Murphy wrote in November for a unanimous Court of Appeals panel, "but we are curtailed by the language of the statute from reaching any other conclusion."

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"Technically," he added, "any time a person engages in sexual penetration in an adulterous relationship, he or she is guilty of CSC I," the most serious sexual assault charge in Michigan's criminal code.

No one expects prosecutors to declare open season on cheating spouses. The ruling is especially awkward for Attorney General Mike Cox, whose office triggered it by successfully appealing a lower court's decision to drop CSC charges against a Charlevoix defendant. In November 2005, Cox confessed to an adulterous relationship.

Murphy's opinion received little notice when it was handed down. But it has since elicited reactions ranging from disbelief to mischievous giggling in Michigan's gossipy legal community.

The ruling grows out of a case in which a Charlevoix man accused of trading Oxycontin pills for the sexual favors of a cocktail waitress was charged under an obscure provision of Michigan's criminal law. The provision decrees that a person is guilty of first-degree criminal sexual conduct whenever "sexual penetration occurs under circumstances involving the commission of any other felony."

Charlevoix Circuit Judge Richard Pajtas sentenced Lloyd Waltonen to up to four years in prison after he pleaded guilty to two felony counts of delivering a controlled substance. But Pajtas threw out the sexual assault charge against Waltonen, citing the cocktail waitress' testimony that she had willingly consented to the sex-for-drugs arrangement.

Charlevoix prosecuting attorney John Jarema said he decided to appeal after police discovered evidence that Waltonen may have struck drugs-for-sex deals with several other women.

Cox's office, which handled the appeal on the prosecutor's behalf, insisted that the waitress' consent was irrelevant. All that mattered, the attorney general argued in a brief demanding that the charge be reinstated, was that the pair had sex "under circumstances involving the commission of another felony" -- the delivery of the Oxycontin pills.

The Attorney General's Office got a whole lot more than it bargained for. The Court of Appeals agreed that the prosecutor in Waltonen's case needed only to prove that the Oxycontin delivery and the consensual sex were related. But Murphy and his colleagues went further, ruling that a first-degree CSC charge could be justified when consensual sex occurred in conjunction with any felony, not just a drug sale.

The judges said they recognized their ruling could have sweeping consequences, "considering the voluminous number of felonious acts that can be found in the penal code." Among the many crimes Michigan still recognizes as felonies, they noted pointedly, is adultery -- although the Prosecuting Attorneys Association of Michigan notes that no one has been convicted of that offense since 1971.

Some judges and lawyers suggested that the Court of Appeals' reference to prosecuting adulterers was a sly slap at Cox, noting that it was his office that pressed for the expansive definition of criminal sexual conduct the appellate judges so reluctantly embraced in their Nov. 7 ruling.

Murphy didn't return my calls Friday. But Chief Court of Appeals Judge William Whitbeck, who signed the opinion along with Murphy and Judge Michael Smolenski, said that Cox's confessed adultery never came up during their discussions of the case.

"I never thought of it, and I'm confident that it was not something Judge Murphy or Judge Smolenski had in mind," Whitbeck told me Friday. But he chuckled uncomfortably when I asked if the hypothetical described in Murphy's opinion couldn't be cited as justification for bringing first-degree criminal sexual conduct charges against the attorney general.

"Well, yeah," he said.

Cox's spokesman, Rusty Hills, bristled at the suggestion that Cox or anyone else in his circumstances could face prosecution.

"To even ask about this borders on the nutty," Hills told me in a phone interview Saturday. "Nobody connects the attorney general with this -- N-O-B-O-D-Y -- and anybody who thinks otherwise is hallucinogenic."

Hills said Sunday that Cox did not want to comment.

The Court of Appeals opinion could also be interpreted as a tweak to the state Supreme Court, which has decreed that judges must enforce statutory language adopted by the Legislature literally, whatever the consequences.

In many other states, judges may reject a literal interpretation of the law if they believe it would lead to an absurd result. But Michigan's Supreme Court majority has held that it is for the Legislature, not the courts, to decide when the absurdity threshold has been breached.

Whitbeck noted that Murphy's opinion questions whether state lawmakers really meant to authorize the prosecution of adulterers for consensual relationships.

"We encourage the Legislature to take a second look at the statutory language if they are troubled by our ruling," he wrote.

Hills declined to say whether the Attorney General's Office would press for legislative amendments to make it clear that only violent felonies involving an unwilling victim could trigger a first-degree CSC charge.

"This is so bizarre that it doesn't even merit a response," he said.

Meanwhile, Waltonen has asked the state Supreme Court for leave to appeal the Court of Appeals ruling. He still hasn't been tried on the criminal sexual conduct charge. His attorney said a CSC conviction could add dozens of years to Waltonen's current prison sentence.

Justices will decide later this year whether to review the Court of Appeals' decision to reinstate the CSC charge.

What is it you guys want the court of appeals to do, exactly? If judges make rulings on the basis of policy, they can go against you just as well as for you.

Either judges leave the making of laws to the legislature, or they do not.

"The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequences would be the substitution of their pleasure for that of the legislative body." The Federalist No. 78

The Federalist Society about itself:

"It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

In Georgia, would the doctrine of "merger" apply to such a case? Suppose our "adultury" statute made it a felony (is is NOT, but just suppose...) and suppose we had the same staute on Criminal Sexual Conduct...

The act of putting the male sex organ into the female sex organ is required for "adultery," right? Nothing less, no necking or petting or foreplay will do. There must be sexual intercourse.

Well that same act of "sexual intercourse" is what is the basis for the Criminal Sexual Conduct, First Degree (CSC-1) charge. So one act of the accused is being held against him in two different ways, with one way being a required prerequisite or precursor for the other. Although "adultery" is not necessarily a "lesser included" crime that fits under the greater crime of CSC-1, it doesn't seem right to use the same evidence to both prove the condition precedent to CSC-1 and then the sexual act that is the core of the CSC violation.

Gunsmoker, while you undoubtedly know more about this than I do, it seems that there are common examples of the same thing happening in GA. For example, don't people get charged (and convicted) of armed robbery and possession of a firearm during the commission of a felony? If they had not possessed the firearm, they could not have committed the felony in the first place (having to be armed and all).

Gunsmoker, while you undoubtedly know more about this than I do, it seems that there are common examples of the same thing happening in GA. For example, don't people get charged (and convicted) of armed robbery and possession of a firearm during the commission of a felony? If they had not possessed the firearm, they could not have committed the felony in the first place (having to be armed and all).

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You don't have to actually have a weapon to rob a place. One could just go into a place with their hand in their pocket and make it appear as if a weapon was present.

Gunsmoker, while you undoubtedly know more about this than I do, it seems that there are common examples of the same thing happening in GA. For example, don't people get charged (and convicted) of armed robbery and possession of a firearm during the commission of a felony? If they had not possessed the firearm, they could not have committed the felony in the first place (having to be armed and all).

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You don't have to actually have a weapon to rob a place. One could just go into a place with their hand in their pocket and make it appear as if a weapon was present.

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I'm no lawyer, but I think that implying that you have a weapon durring the commitment of a crime has the same penalty as having one in GA.

Anything that makes baby Jesus cry should be grounds for the death penalty.
And my Mommy says that when I spank the monkey, an angel loses it's wings.

I know in some states implying that you have the weapon is the same as using a weapon, regardless if you don't have it, or even if it's a toy. Tell someone that you have a weapon, in the commission of a crime, or imply that you have one, instant Felony Weapons Charges, aggravated assault, etc. etc.

And my Mommy says that when I spank the monkey, an angel loses it's wings.

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Did she have to tell you that a lot?

I am sure that the Michigan legislature will act after this court opinion and reduce the prison sentence for adultery.

Gunsmoker, is the Georgia adultery statute still a viable criminal statute after the Georgia Supreme Court privacy decisions relating to consensual homo sodomy (like that is what the Constitution's drafters had in mind!)

1 -- A person can be convicted for both Armed Robbery and Possession of a Gun During a Felony, but that person cannot be SENTENCED for both. I think thats how it works. One crime would "merge" into the other and only one sentence would be imposed. Probably. One complicating factor is that for armed robbery, a "firearm" is not required. Any "offensive weapon" would do it, which could be a stick, pepperspray, contact-only stun gun, etc. But if the facts of the case were that it was a firearm, and only a firearm, I would think merger would apply.

2-- "Spanking the Monkey" is such a crude, politically incorrect term. I mean, with the reference to animal abuse and all that. Let's take this discussion to a higher level with more appropriate language. I suggest "Disciplining the Primate."